01a51022
04-14-2005
Lisa Foust, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Lisa Foust v. Department of the Army
01A51022
April 14, 2005
.
Lisa Foust,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A51022
Agency No. ARAPG-04May00007
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 29, 2004, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of race (African-American) and in reprisal for prior EEO
activity (arising under Title VII) when on April 7, 2004, complainant
received a Letter of Proposed Suspension for misconduct and improper use
of travel authorization, and was treated with intentional and unnecessary
hostility by the Associate Director of the Homeland Defense Business
when he accused her of intentional misrepresentation.
The agency dismissed her complaint, claiming that it failed to state
an actionable claim as she had not established how the incidents she
alleged resulted in a harm or loss to a term, condition or privilege of
her employment.
On appeal, complainant argues that she indeed suffered harm in that
she was denied four days of pay following a four day suspension,<1>
and she required medical care to treat her work-related stress.<2> In
response, the agency maintains that the dismissal was proper because
the complaint she filed on July 16, 2004 never included any claims
regarding the four-day suspension which took place in October 2004; it
only concerned the April 7, 2004 letter proposing a thirty-day suspension.
The agency also argues that to the extent complainant raises a hostile
work environment or harassment claim, this too should be dismissed
because her allegations do not indicate severe or pervasive treatment
based on a protected basis. See Notice of Opposition of Appeal
Under EEOC regulations, an agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he or she
has been discriminated by that agency because of race, color, religion,
sex, national origin, age or disabling condition. See 29 C.F.R. ��
1614.103, 106(a) (2004). The Commission's federal sector case precedent
has long found an �aggrieved employee�to be one who �has suffered direct
and personal deprivation at the hands of the employer.� Gilyard v. Dep't
of Energy, Appeal No. 01A01550 (June 9, 2003) (citing Hobson v. Dep't
of the Navy, EEOC Request No. 05891133 (Mar. 2, 1990)); see also Diaz
v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994)
(defining an �aggrieved employee� as one who suffers a present harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy.)
The Commission finds that complainant has properly stated an actionable
claim because she has been aggrieved. The agency is incorrect to draw
a distinction between the April 7, 2004 Letter of Proposed Suspension
and the four-day suspension which actually took place. A review of the
Notice of Decision to Suspend, which informs complainant of the four-day
suspension, reveals that the earlier proposed suspension related to
the same incidents involved in the four-day suspension. Specifically,
the Notice shows that initially complainant was to be suspended for
thirty-days but upon review of her response to the proposed suspension
the disciplinary action was reduced to four days. See Notice of Decision
to Suspend. Therefore, as the proposed disciplinary action that is a
subject of the complaint became effective during the course of the EEO
process, she does state cognizable claim because the resulting suspension
caused harm or loss that affected a term, condition, or privilege of
her employment.
As we find that complainant states an actionable claim, the Commission
REVERSES the agency's final decision. The complaint is hereby REMANDED
to the agency for further processing in accordance with this decision
and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 14, 2005
__________________
Date
1 Although the Letter of Proposed Suspension threatened to suspend
her for thirty-days, following the filing of her complaint, the agency
issued complainant Notice of Decision to Suspend on September 28, 2004
which became effective on October 12, 2004.
2 Complainant also states on appeal that her professional reputation
suffered as a result �of being falsely accused of Violence in the
Workplace.� Complainant's Statement in Support of Appeal. We decline
to address this additional issue as the Commission has already issued
a decision on this claim in Foust v. Dep't of the Army, EEOC Appeal
No. 01A43790 (Oct. 15, 2004).